Lieberman Willing To Go Solo

So it's official. Joe Lieberman will run as an independent if he does not win the Democratic primary.

I don't really know what to think. I've never been as much of an anti-Lieberman basher as most, although his persistent shilling for the Bush administration is supremely aggravating (and the fact that he was responsible for the inept securities laws that gave us Enron is another big strike against him). His justification for the move was also interesting:

"I am very loyal to the Democratic Party, but I have a loyalty higher than that to my party. That is to my state and my country.

Great words, but I'm not sure I really believe Lieberman is being totally honest. He's loyal to himself, not to the "country." Maybe he's loyal to the country in the egomaniacal sense of "the country needs me, whether they want me or now," but I don't know if I want to give brownie points for that.

Gay Foster Parenting Winner

Via Mirror of Justice, I am pleased to report that the Arkansas Supreme Court has unanimously upheld a lower court judgment striking down that state's prohibition on gay foster parenting. Actually, the regulation in question here went beyond prohibiting homosexuals from becoming foster parents, it extended the prohibition to any family which had an adult homosexual living in the household.

I blogged about the lower court ruling previously. It's very interesting reading, as the testimony it describes really demolishes whatever scientific basis there is for preventing homosexuals from starting families.

As for this decision, the ruling was rather narrow, focusing only on separation of powers issues and not the more meaty equal protection or privacy arguments. The Court rather simply noted that the executive agency did not have statutory authorization to make this prohibition, and that the testimony given showed pretty clearly that there was no rational basis connecting such a regulation to the best interests of the child. It said nothing about whether or not such an act would be permissible if the legislature had enacted it directly (although a concurring opinion said that it would not). Hence, this might be another case of a democracy forcing decision--not letting legislatures hide behind executive agencies to avoid going on the record voting for such a draconian violation of gay civil rights. Basing the decision on these grounds makes it harder for the right to argue that this is an "activist" decision--not that they won't try, only that it will be less coherent than normal.

San Francisco Symbolism

Tom Elia points to two cases where (presumably liberal) commentators said there were hidden motives behind conservative notations of a place. Specifically:

New York = Jew

San Francisco = Homosexual

Elia thinks both are ridiculous. I'll agree with the former, but he's delusional if he thinks the latter isn't in play. Totally coincidentally, Elia doesn't even try to say what conservatives mean when they talk about "San Francisco liberals" (nor do the other blogs who commented), preferring to focus on Pelosi herself:

Nancy Pelosi = "Over-her-head, out-of-touch-millionaire, with rhetorical skills that make George Bush look like Cicero."

Well, perhaps, but that certainly isn't what springs to mind when one thinks of San Francisco. It does absolutely nothing to explain why Republicans love to harp on the fact that Pelosi is from the city of the Golden Gate. Is there something about San Francisco that makes it entirely a bunch of "out-of-touch-millionares"? Or is it famous for its poor rhetorical skills? Please. What the heartland thinks of, when it hears "San Francisco" in a political context, is its large gay community. San Francisco = pro-gay. There is no way Elia can be a serious observer of politics and not know this.

In other words, sure, there are plenty of angles of attack on Nancy Pelosi that have nothing to do with homosexuals. But they also have nothing to do with San Francisco. Once you start mentioning "San Francisco" in the ads, you have to give me a convincing reason why you'd bother bringing it up. The self-evident answer is the gay symbolism.

(Incidentally, the reason this doesn't apply to "New York Times" is that NYT is a stand-alone proper noun. If Republicans started talking about "New York liberals," then they'd have to explain the symbolism behind that, but talking about the NYT and talking about New York are not the same thing).

Kuwaiti Landmark

Powerliner Paul Mirengoff reminds me to give a congratulations to Kuwaiti women, who voted in their first election.

Mr. Mirengoff seemed sad that so few feminists seemed to be taking note of this auspicious occassion. So I took the liberty of finding some for him:

Feministe (you can't tell from the link, but it's the only above-the-fold part of this roundup)

Feminist Law Profs

Pseudo-Adrienne

Free-range Feminist

Avast! Feminist Conspiracy

And I'm proud to add myself to the number.

Step Out

E.J. Dionne praises Barack Obama's speech on faith. As a Democratic voter whose (Jewish) faith is important to him, I am at loss for an explanation for why the Democratic platform should in any way be considered incompatible with a religious life.

A few months ago, I wrote about the need to rein in the soaring expectations that have begin to engulf Senator Obama. One of the biggest risks is that media figures will get tired of writing another "golden boy" story and will turn hostile just for the new angle.

And I fear we're starting to see it already. Howard Kurtz has a piece entitled "Senator Steps In It," remarking on the reaction of some liberal bloggers to Obama's speech--namely, the part where he chides "liberals who dismiss religion in the public square as inherently irrational or intolerant." The theme of Kurtz's piece is that the ravenous and insatiable left is turning on their favorite son. But honestly, his support is thin, at best. Basically, I object to the meme that this is the paradigmatic progressive response becoming the conventional wisdom.

The two harshest attacks come from two bloggers no one has ever heard of. If "I Am Vince" will change parties if Obama gets on the Democratic presidential ticket, then I say don't let the door hit you on the way out. The only big name Kurtz musters is MYDD's Chris Bowers, who seems more upset over the likely political impact of Obama's comments than giving up hope on the Senator entirely. What all three have in common though, is that they deride the strategy of chasing after evangelicals in the first place, calling them the most conservative voters in the polity. For the life of me, I cannot figure out this attack. It seems that Obama is engaging in a classic "What's the matter with Kansas" maneuver. Evangelicals are a solid member of the right base now, for sure, but there is no reason why they have to be. It has been noted before that there is plenty of room for progressives to make inroads here, especially once one gets beyond the corrupt and plutocratic leadership and into the rank and file. Why we should automatically write off a major portion of the electorate that can be turned in our favor (just so we can continue insulting them?) eludes me.

But even with Bowers weighing in, it still feels like he's on the short-side of the argument. Later on, he cites two big guns in the liberal blogosphere, Nathan Newman and Matt Yglesias who both defend Obama and slam the progressives who were so quick to attack him. Newman pulls out the overriding progressive theme in Obama's speech that managed to meld traditional religious concepts with a modern liberal framework--beautifully, I might add. Echidne misses the point here: the idea isn't that religious voices are excluded from the public square, it's that a) Democrats have not found away to frame their arguments so that they are consonant with a religious worldview, when they should and b) the perception amongst some religious people is that Democrats view them as irrational pre-enlightenment hillbillies. That is not saying that one cannot make moral policy decisions based on a secular framework. It's, at root, a call for pluralism which I for one (and I'm not the only one) support.

I do think that the idea that Democrats are hostile to religious voters is a media-driven myth, but its people like Obama who are our best chance at breaking it down (and if he needs to pull a Sister Souljah moment to do it, be my guest). Folks like Captain Ed might want to label Obama a "former left-wing hero", but they're deluding themselves: the vast majority of the liberal rank and file remains firmly in his camp (incidentally, Ed, who I've had interesting conversations with, should really be worried about his comment section. The company you keep after all...).

The problem is, as The Green Knight notes, that the media spun Obama to sound far more critical of the Democrats than he was. That might reinforce the fact that this media-myth does have legs, but surely we can't blame Obama for media-created distortions. He's got the right idea, and what's more, the vast majority of the Democratic party (top to bottom) agrees.

The Good Fight

Powerline's Paul Mirengoff remarks on Peter Beinart's new book, The Good Fight: Why Liberals--and Only Liberals--Can Win the War on Terror and Make America Great Again. Paul is a good guy and I'm glad that he thinks folks in Beinart's camp (I count myself among them) are "more...allies than...adversaries." Still, he subjects Beinart's thesis to some harsh criticism, most of which I feel is off the mark.

The big area of controversy is to what extent liberal domestic policies are necessary to waging the war on terror. Paul is dismissive of the idea:

Beinart's heavy reliance of the role of the civil rights movement in the Cold War seems misplaced. Similarly, the arguments made by his fellow pro-defense liberal Martin Frost are unpersuasive. Frost argues that our efforts to promote democracy abroad are being undermined by the alleged mistreatment of detainees and supposed civil liberties abuses in the U.S. Frost offers no evidence for this proposition, and a moment's reflection is enough to conclude that it is entirely implausible. Surely Frost does not believe that the terrorists in Iraq are trying to bring down the democratically elected government because of the interrogation techniques at Gitmo. Or that the Saudi government is resisting democratic reforms due to the NSA electronic intercept program. People in other countries favor or disfavor democracy based on their perception of their own interests, not their perception of the U.S.

The argument obviously fails if it's a pure X --> Y causal relationship. But I sincerely doubt anyone is making that argument. The right question to ask is whether American human rights abuses are pushing Arab citizens away from supporting Western-style democracy. That seems altogether plausible. Indeed, the argument works under Paul's own metric of individual interests.

Imagine an average Arab male, just liberated from an oppressive Ba'athist regime. After years of living in fear of an all-powerful and unaccountable state, what is one of the biggest draws of American democracy? Put bluntly, it's the promise that in America he won't be dragged off to an isolated prison for no apparent reason, without any sort of trial, procedures, or chance to clear his name, and subjected to torture. When the promise is put on shaky ground, America loses one of its greatest advantages. And remember, it's a perception issue--all jihadists have to do is cast doubt that America-the-ideal is America-the-reality. Place a picture of the Statue of Liberty next to a picture of Abu Gharib, and that point comes off rather potently. This isn't to say that democracy has no other advantages outside of the "won't-get-dragged-off-and-shot" variety, only that this is a major one and we sacrifice it at our own peril.

Contrary to Mr. Mirengoff's insinuations, there is historical precedent for this. One of the key motivators behind the landmark Brown v. Board decision was the Justice Department intervening, for the first time, on the NAACP's side in a segregation case. Why did they do that? Well, as Derrick Bell has convincingly argued, they did it because the State Department kept on receiving cables from its diplomats screaming that they were getting mauled in the 3rd world over Jim Crow. We could not simultanously preserve such a blantant apartheid system and still claim to be defending liberty and equality on a global scale. I think that argument still applies, and the political party most able to transmit a persuasive pro-democracy message abroad will be the one that shows the greatest commitment to it at home.

What Paul is really steamed about, I think, is the implication that Republicans are ill-suited to win the war on terror. He thinks this charge is most unfair, and what's more, he thinks that few Democrats really take terror as seriously as Beinart does. I'm certainly in no position to respond--after all, I echoed Beinart's claim over a year before the book came out. But I'll merely add two things.

1) This argument is a mirror image of the Rovian assualt Republican's have made on Democrats since 9/12/01. Turn about is fair play.

2) Taking Kevin Drum as my guide (and I think he's a pretty good bellweather for the Democratic mainstream), the primary reaction to Beinart's argument hasn't been to decry its militarism, its been almost along the lines of "duh, that's what we've been saying for years". As Drum writes:

I think he could give the keynote address at YearlyKos and not really say much of anything the audience would disagree with. If Beinart really is the standard bearer for a new incarnation of liberal hawkishness, then we're almost all liberal hawks now.

So if Paul thinks Beinart is mostly on target, and most Democrats also think that Beinart is on target, then I think that's pretty compelling bipartisan support for the mainstream Democratic position on anti-terror policy.

UPDATE: My latest reply to Mr. Mirengoff is here.

The Cutting Edge

Fidel Castro's niece is leading the charge for gay rights in Cuba. Nothing is more aggravating to me than watching brutal totalitarian regimes outperform the US on an issue of human rights. It's bad enough that we're now in a race with Cuba to see who can stop oppressing homosexuals first; can we please at least not lose it?

Tainted Pool

Dan Filler has a great post supporting David Souter's claim--made in the Kansas v. Marsh dissent and mocked by Doug Berman--that capital cases might have higher error rates than non-capital cases.

He gives six reasons, the most interesting of which--to me, anyway--was the second:

Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

I had never thought of this before, yet now it strikes me as a significant problem--especially depending on what the exact definition of "death-qualified" is.

For example, I don't have any theoretical or philosophical objection to the death penalty. But I do think that our death penalty system is broken beyond repair, at least without a moratorium. So, as a juror, would I be willing to cast a vote for death? Maybe...but I think I'd set my standard so high that it'd be impossible to meet--it would hinge on me being absolutely certain ("beyond a scintella of a doubt") of the defendants guilt, on it meeting certain admittedly subjective criteria for severity (i.e., a rape/murder), and being convinced that there was no procedural defects apparent at trial--ranging from inadequate representation to racial bias in the DA's office. I'm not sure I'd ever be convinced of all that.

People like me, then, probably will be excluded from hearing capital cases. Which is problematic, because what makes someone like me "like me" is that we're skeptical of the state when it comes to the criminal justice sphere. I really think that given the statistics, such skepticism is warranted and those who don't have it are really demonstrating a bias towards the accused (aka, the not-yet-convicted). Even if one doesn't think that we're indisputably right in our critique, though, it still should be recognized that our presence is valuable for a balanced jury pool that will be through and complete in its deliberations.

Incidentally, this post topic dovetails nicely with Andy Leipold's findings that judges are--contra to the prevailing wisdom--less likely to convict criminal defendants than juries are. This occurs off of all cases, not just capital ones, but still, I think there may be a connection.

Political Clout

Yesterday, the good folks over at the Family Research Council got themselves in a bit of a huff over Maryland Governor Robert Ehrlich (R) seeming a bit too pro-gay. Remarking on Ehrlich's appointment of an openly gay judge to a Maryland court, and his firing of a Metro board commissioner who called homosexaulity "deviant", the FRC cried:

Gov. Ehrlich's lurch to the left is deplorable. His firing of Mr. Smith is an assault on religious liberty and on freedom of speech. His election-year conversion to champion of gay issues is pandering at its worst. This once again highlights the radical impact that the Supreme Court's decision in Lawrence v. Texas has had on the country.

I was a bit amused to hear about "election-year...pandering" in favor of gay rights. Got to satisfy that massive gay conspiracy constituency. But hey--this is Maryland. Maybe they're right, and this is the rare state where bigotry doesn't have an election payoff. Wouldn't that be nice.

Meanwhile, James Dobson has a set of complaints about supposed media bias against the anti-gay crowd (ironically enough, published on CNN). You may remember Dobson for his bizarre claim that gay marriage "will destroy the earth." Well, he might have just topped himself:

So where does the issue go from here? Time will tell. It took William Wilberforce more than 30 years to bring about an end to Britain's slave trade in the 1800s. Unfortunately, we do not have the luxury of a protracted victory.

Am I reading Dobson right that gay marriage poses a greater moral threat than slavery? That's simply stunning. Folks like Dobson use and abuse the civil rights movement for their own agendas, but seem to have very little awareness of the gravity of the wrong itself.

Hmm...maybe the way Black people could properly remember their tragedy would be to support equal rights and citizenship for their gay compatriots. The most logical descendant of Loving v. Virginia, after all, is Goodridge v. Department of Health.

Patriotic Fervor

Via Rick Garnett, a really interesting claim about the role of patriotism in America's governmental system. It seems that too much of it is, well, unpatriotic:

Americans' powerful identification with their country poses a significant threat to the system of intergovernmental competition that the Framers envisioned. The Framers believed that the state and federal governments would compete with one another for citizens' loyalty and for the regulatory power which that loyalty often yields, and that this competition would give both sovereigns strong incentives to remain finely attuned to the needs and desires of the citizenry. I contend that the nation's seemingly exclusive claim to citizens' patriotism significantly shields the federal government from the competitive forces that the Framers believed would restrain its ability to govern in objectionable ways. I conclude by advancing a two-part argument. First, to ensure that the federal government does not wield monopolistic power in a vast array of domains, we should give increased consideration to treaties and other regulatory alternatives that require America's leaders to negotiate with their counterparts in other countries. Second, in the years ahead, Americans may very well develop the supra-national patriotic sentiments necessary to sustain such models of international governance.

I do wonder how many federalism supporters saw this abstract and started flailing their arms wildly, shouting for attention. But even still, it's an interesting point.

And while we're on the subject of too much patriotism undermining the ideals our nation was founded upon, I note with some satisfaction that the flag desecration amendment failed in the senate today--albeit by one vote. I wrote these letters to my senators prior to the vote, but unfortunately I believe both voted for the amendment.

Keep It Clean

Kevin Drum points out something Democrats would do well to keep in mind: We'll lose the race to the bottom. If politics goes completely into the gutter, if Democrats and Republicans fight a duel with Ann Coulter and Michael Moore as the primary combatants, Republicans will win. Every time.

There's a bunch of reasons why that's true, but here's the simple test. Compare these two attacks and see who's going to come out ahead:

REPUBLICANS: Democrats demonize people of faith!

DEMOCRATS: Republicans demonize atheists!

Yeah, that's going to turn out well. Or try with different categories. Families versus homosexuals. Soldiers versus dissenters. Immigrants versus "hard working Americans."

Note that I am not saying that these dualism are accurate characterizations of the issues. I'm merely pointing out that when things get reduced to their barest caricatures, Democrats are going to lose. Because we're a party of deep ideas. We're not good at transforming our message into a taunt, because it's about uplifting America, not trying to keep it down.

One could argue that we're too late, the political climate has already moved past the point of civility, and we need to play dirty or lose every time. I might agree with the first half, but I sorely dissent from the second. If American politics today is framed as a slime contest, then Democrats need to focus their efforts on changing that frame. We need more Barack Obamas, not more Michael Moores.

Caught in the Net

This Washington Post article about a man thought to be a fugitive because a criminal had used his name as an alias left me with chills. It's truly frightening how heartless the criminal "justice" bureaucracy has become. This man had clear, incontrovertable proof of his innocence that was easily accessible to the authorities. What hope do those persons have who are not so obviously in the clear?

Thanks to my friend Lauren for the heads. Meanwhile, the DC rain storms have flooded my basement, so I'll likely be waging war against rising water for the next few days. Wish me luck.

Al Gore Patrol

I am a big Al Gore fan. I explain this to my friends, and they don't understand. The Democrats certainly are vaguely positive towards him, in the pining sense ("imagine if he had become President instead of Bush!"). The Republicans are just bewildered. They can imagine someone supporting Al Gore, but not being a big cheerleader for him. Don't I know that he's boring and uninspired?

My first response is that Al Gore is possibly the only major political figure to have been right on every major issue of the past 15 years. He was right on Gulf War I. He was right on Gulf War II. He was right about Global Warming and hybrid cars way before it was popular. He was a national security wonk in the mid-nineties when it was on nobody's mind, and he was advocating increased airline security years before 9/11 happened. His policy instincts, time and time again, have been proven to be without parallel.

But more than that, I refuse to buy into this notion that I should elect a President based on the same criteria that I'd elect a frat brother. I honestly don't care if Al Gore makes for a better drinking partner than George W. Bush. Hunter summed up my feelings exactly:

Ah, what might have been. Gore was widely derided by the press for the audacity of the lengthy answer or the wonkish explanation, a man too versed in facts, or God forbid with a speaking style that paused, from time to time, to find the right phrase instead of the next phrase. Not a man you would want to have a beer with, was the conventional wisdom shoved down our gullets like we were geese being prepped for our final hours. Knowledge is wooden, education is wooden, intellectualism is wooden, because facts are like trees: there's too damn many of them, and they're hard to tell apart.

Election 2000 was the start of my disenchantment with the democratic system, and not because Gore lost. It was before that, listening to the media coverage, where being smart and concerned and intellectual and yes, a bit wonkish, was seen as a liability, something to be overcome, rather than a boon to our nation, Gore's greatest strength. Well gosh, what was I doing trying to keep my A- GPA if this made me less qualified to lead in the public eye? Seriously, what kind of message do you think that sent to students following the election? I'll tell you: intelligence is for chumps. Frankly, I think we hear that message enough.

Well I've had it. I'm sick of being forced to hide from my own mind, and I'm sick of being forced into the political shadows as part of the evil liberal academic cabal of intelligentsia. I'm sick of a polity where education is seen as a vice, and I'm sick of a community which would rather ban new ideas than address them.

Al Gore is this sort of citizen's worst nightmare. Informed, passionate, educated, and committed. I put myself under his banner, and I hope to God we can remove ourselves from the dark path we set ourselves down in 2000--not by electing Bush, but by electing whoever we thought was the best buddy candidate in the group.

Beyond LGF

In Arizona, a Republican gubernatorial candidate is advocating forced labor camps for illegal immigrants. Nice.

Once upon a time, this type of rhetoric was limited to the LittleGreenFootballs crowd. Now you find in Republican primaries. And while Senator McCain and Representative Jim Kolbe (both Republicans) get props for harshly condemning the plan, really, what have we come to when they have to?

H/T: DKos

An Alabama Tradition

One thing that you learn quite rapidly when doing research into primary source texts of a historical period is that things are never as monolithic as popular parlance portrays them. For example, while the American South was definitely (and brutally) racist, it was not uniformly so, in that the people were entirely unaware that racism might even be wrong. These arguments were indeed being presented, albeit often by outsiders and always in the minority. As such, it provides an interesting riposte both to those who would caricature the American South as being in a state of complete moral darkness, as well as those who would apologize for their crimes with the cry of "they knew not what they did."

While looking up the local coverage of the Scottsboro trials, for example, I found a really interesting editorial in the Montgomery Advertiser defending the political rights of atheists. Commenting on a State Court of Appeals ruling which held that atheists were not "competent" to take oaths because they did not believe in an almighty God who could mete out justice and punishment, the editorial powerfully defended the rights and privileges of a group which undoubtedly was not any more popular in 1931 Alabama than it is today. Responding the court's argument that:

The whole fabric of this nation from its inception to the present time is founded on a belief in a Supreme Being whose guiding hand is recognized and involved in our most solemn governmental pronouncements

the editorial proclaimed:

What 'governmental pronouncement' is more 'solemn' than the constitution of the United States? It is a purely political document. It is a purely secular document. Not one line in it refers to a Supreme Being.... The reference to 'Almighty God,' etc., in the Declaration of Independence is cited, but the citation lacks weight for the reason that the Declaration of Independence is a war-cry and is not in any sense a part of the law of the Republic.
[...]
The genius of our governmental institution is affronted by the laws of Alabama, if the laws of Alabama are correctly interpreted by the State Court of Appeals when it says:

There is no place in our whole governmental structures for a belief which ties men to the rocks and clods and places him on a level with the beasts of the field

But we prefer to regard this as rhetoric rather than a statement of the laws of the Medes and Persians. Actually, there is a place in our "governmental structures" for all dissenters and all believers. If there is no place for dissenters, then this is a theocracy rather than the "republic of republics" where the conscience of the individual of goodwill is inviolable.

If the Court of Appeals is right, then Alabama has a state religion. ["Alabama's State Religion," Montgomery Advertiser, March 26, 1931 at pg. 4]

There are so many things that strike me about that passage. The imputation that "Alabama has a state religion" is not just used as an insult, but is assumed to be one on face (in other words, an assumption that the readers are not just constitutionally literate to know that state religions are prohibited, but constitutionally committed so they'd agree). The blunt dismissal of the Declaration as a document that is part of our contemporary body of law (I'd agree, but nobody would get away with putting it that plainly today). Even the idea that someone could write in one of Alabama's largest daily papers and boldly defend atheists as equal American citizens (and the piece pulled no punches in that regard) is surprising. I'm not sure you'd see such a clear commitment to religious equality in Montgomery today.

Also interesting was that a few days later, someone wrote in responding to the editorial. He claimed that "oath" definitionally implied swearing to a deity or higher power, and "religion" cannot definitionally encompass atheism (which is a lack of religion). The editors of the Advertiser responded by pulling across the pragmatic arguments they made in the first editorial--that the position of the court (and the letter-writer) would mean that atheists could not testify in their own defense, serve on a jury, or be elected to office (all of which require oaths). Are we really comfortable with denying them those rights (and if we do, are we seriously going to say we treat all citizens equally?). But I'd simply point out that, if we are to take these traditional definitions of "oath" and "religion" seriously, then to protect atheist rights will require not just accommodation but a bona fide change in the law or its understanding. So when conservatives today say that "atheists don't want equality anymore, they want special exemptions from long-standing laws," remember that this objection is essentially unchanged from 75 years ago. There is no "anymore," the folks who want to deny atheist rights can always frame it as "special rights" rather than fair accommodation.

And Proud Of It

Via The Moderate Voice, I find that the dictator of Sudan is blaming the Jews for leading the charge against his genocide:

Sudan's president said Jewish groups are responsible for the possible U.N. deployment of peacekeepers in his country.

"If we return to the last demonstrations in the United States, and the groups that organized the demonstrations, we find that they are all Jewish organizations," Omar al-Bashir said.

U.S. Jewish groups have taken the lead in calling for more international intervention to prevent genocide in Sudan's Darfur region, where a government-sponsored campaign of violence has led to an estimated 200,000 deaths and a humanitarian crisis.

You better believe we're heading this one up. I've never been so proud to be at the head of a Jewish conspiracy.

PS: I hate to say "I told you so" to Mark Olson but...

Waiting for Argument

One of the raps against originalism is that it miraculously stops being relevant when it leads to results conservatives dislike. It nearly always acts as a cover for results-based judging, which is especially annoying given how its adherents smugly defend it as a bold stance against judicial policymaking.

A few months ago, I noted that the usage of foreign law in American judicial opinions actually has rather deep roots in American jurisprudence, stretching back to the founding generation. Since then, I've only seen evidence supporting that view:

Under an originalist approach, a good deal of evidence demonstrates that at the country's inception, discussion of law from elsewhere was commonplace....Critics of the contemporary use of foreign law sometimes reply that foreign sources were not used to interpret the meaning of the Constitution. Defenders respond that (1) as an empirical matter, citations in cases prove otherwise; (2) in early periods, the Court did less constitutional interpretation; and (3) the line between common law and constitutional interpretation was not sharp. [Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 Yale L.J. 1564, 1568-9 n.7 (2006)]

I'm not an originalist, so in that past post I gave my own independent reasons for allowing citation to foreign cases. But I'm curious how self-described originalists make their case. There may well be solid reasons for opposing foreign law citation, but they are the type of objections that originalists would normally tag as fundamentally policy questions (e.g., it undermines the democratic process because we don't vote for foreign judges). Were I to use their rhetoric, I could very easily respond to a Scalia acolyte

"Sure, citation to foreign law may be suspect as a matter of good policy, but it's been well established since the time of the founding that this sort of interpretation is permissible. What grounds do we have to say it's illegitimate now?"

Now, one could respond that judges should use their discretion and refrain from using these sources even though they theoretically could. But that doesn't seem to be the objection of Scalia and his ilk. They say that this sort of usage is not just wrong, but illegitimate (Paul Mirengoff said it was grounds for impeachment). How is that defensible on originalist grounds?

I ask any originalist readers of the blog (this seems right up Southern Appeal's alley) for an answer to this truly vexing question.

The Law as an Outrage

I took my first look at the Law & Society Blog today, and it is a clear winner. This brilliant post by Hanno Keiser, on a 200 year sentence for possession of child pornography in Arizona, is just a brilliant display of what blogging can be: deep, engaging, informative, and compelling. It's on the blogroll.

The case, Arizona v. Berger, might actually be right as a matter of law--mostly because the Supreme Court has really taken the teeth out of any proportionality requirement the 8th amendment might impose. If you can sentence someone to life in prison for stealing golf clubs, or for a first time possession of cocaine rap (both cases cited by the court), then I have a hard time saying that possessing 20 pictures of child pornography is any more shocking (Douglas Berman accurately points out that this posed no barrier to examining the parallel clause in the Arizona state constitution, however). But what Keiser illustrates is that such a jurisprudence is one that's gone deeply awry. The sentence here is longer than the presumed sentence for rape, for second degree murder, or (ironically) for sexual assault against a minor. Discontinuities like that occur when criminal law views itself as in the business of expressing moral outrage. To quote Keiser at length:

The Berger case is one of the latest examples of enemy jurisprudence, of moral wrath using the legal system, and with it the government’s monopoly on the exercise of lawful violence, to destroy the lives of undesirables. The decision in Berger cannot be rationalized with arguments from traditional consequentialist or retributive theories of punishment, as it violates every requirement of proportionality....
[...]
The sentence in Berger is largely expressive conduct. It uses law as a means to display moral outrage. It is a celebration of moral hatred, as aptly described in the opening chapter of Michel Foucault's Discipline and Punish. A free society under the rule of law critically depends on the separation of the legal and the moral system. The code of the moral system is right/wrong. The code of the legal system is lawful/unlawful. By incorporating notions of morality, the law has transformed them into legal categories. That transformation of moral into legal categories is of particular significance in the context of criminal law. Moral categories tend to be absolute. Legal categories never are. In the criminal law context, the law does not only capture a society’s sense of moral condemnation, but also and more importantly for a free society, it imposes limits on what a government can do to the offender. These limits are the essential contribution of the law in the process of punishment. And in cases like Berger, these limits have all but disappeared....
[...]
The Berger case is a vivid illustration of that point. Here, the offender was technically not punished, if we require punishment to be a meaningful intra-societal answer to the offense. Rather, the boundaries of society have been redrawn so as to exclude the offender. Ejected from society into a natural state, society is free to wage war, to lash out and crush the offender, unrestrained by considerations of proportionality.

To the extent that Keiser is saying that law is not (or should not) be an instrument of morality, I disagree with him, but I don't think that's his claim. I think it's facile to claim that law and morality are, should be, or ever can be divorced. But I think that there is value in saying that law should not be used merely to express social outrage. There has to be some utility behind it. And again, this is a bigger problem when the subject is criminal law, when the legal sanction is not an injunction and a settlement, but prison or even death. In many ways I think that racial discrimination is as grave a moral wrong as mere possession of child pornography, but I don't think that it should generally come with criminal punishment (I do think that possession of child pornography is worthy of criminal sanction--but not life in prison for owning 20 images).

Re-Colonize This!

The Sudanese government has rejected calls to send in international troops, saying that it would effectively "re-colonise" the African nation.

The post-colonial scholars have always struck a chord with me, but one thing I can't get past is how, in the real world, their rhetoric is far more likely to appear in the defense of brutal oppression than in the liberation. I sincerely doubt that Omar al-Bashir is reading Spivak, but clearly he and his ilk have realized that this sort of language is remarkably effective at stalling liberal international groups' commitment to challenging their brutal regimes.

There is no way, of course, that sending in international troops to stop a genocide is a (re)colonization of anything. But it does no good for me to say that, because I'm from the US. So what I'd really like to hear is a response from the African Union--or even a consortium of African states--unambigiously proclaiming that such an intervention would not constitute colonization in any way, shape, or form.

The Israghani

I recently declared my support for Ghana after one of their players waved the Israeli flag upon scoring a goal. The player, John Paintsil, plays professionally in Israel and wanted to declare his support for the Israeli fans who had supported him throughout his career. Now, Ghana is apologizing for the gesture due to outrage among Arab states.

I should be clear. There are people who can justifiably, if they choose, be outraged by Paintsil's action. They are the people of Ghana. If an American player waved a foreign flag, one could certainly question the appropriateness of the move (and if the player was of Latino origin and waved a Latin American flag--God help us. I could hear Limbaugh explode from here). How one wishes to draw the line regarding national pride in a support where so many players compete in foreign leagues, like soccer, is difficult, and different nationalities might see the issue differently.

That said, anyone not from Ghana needs to back off (and nothing in the article indicates that it was an internal reaction from Ghana that provoked the apology). Ghana's soccer federation might be better off defending its stars from allegations that they are "ignorant and stupid," Mossad agents, and/or bribed by Israelis. They also might want to give Paintsil a forum to discuss whether or not he'd been taken to "football training camps set up by an Israeli coach who discovered the treasure of African talent, and abused the poverty of the continent's children with the ultimate goal of selling them off to European clubs....[S]tart[ing] every morning with a salute to the Israeli flag."

I am so sick of this. Israel is, far and away, the most unjustly abused nation-state in the world arena. Waving the Israeli flag expresses precisely no opinion as to the Israeli/Palestinian conflict. It does, I concede, express an opinion as to whether Israel is a legitimately existing country, and let's be clear: that's what this is about. Many people in the Arab world still fundamentally reject Israel's right to exist.

That Mr. Paintsil and his fellow teammates who play in Israel have had such warm feelings towards their host country was truly inspiring. I was hoping that it might open some eyes among people in regions of the world where there are no Jews and thus have far less opportunities to refute the constant stream of slander that Israelis (and often Jews too) are subjected to on a daily basis. Nobody can take away Mr. Paintsil's bold display, but I was hoping that his superiors would embrace it, not hide it as some embarrassing secret.